Appeal against acquittal under Section 378 of the Code of Criminal Procedure (in short, “Cr.P.C.”).
2. The appellant preferred a complaint against the 1st respondent/accused alleging that she committed an offence under Section 138 of the Negotiable Instruments Act (in short, “the Act”). After recording the evidence of PW1 and marking eight documents on the side of the complainant, the court below acquitted the accused under Section 255(1) Cr.P.C.. Aggrieved by that judgment, the complainant has come up before this Court in this appeal.
3. Heard the learned counsel for the appellant/complainant and the learned Public Prosecutor.
4. Case in the complaint is that the complainant is a company engaged in kuri business. Husband of the accused was a subscriber to one of the kuries. The accused was a surety for the kuri amount. The subscriber failed to pay instalments and the accused, in discharge of that liability, issued Ext.P1 cheque to the complainant. Thereafter, when the cheque was presented for collection, it was dishonoured. In spite of sending a statutory notice, no reply was sent on behalf of the accused nor any amount was paid. Hence, the prosecution was launched.
5. The trial court found that the complainant failed to establish that the accused issued Ext.P1 cheque in discharge of a legally enforcible liability. At the time of hearing, it is seen that Ext.P1 cheque was drawn on Nadathara Farmers' Service Co-operative Bank Ltd., Nadathara, Thrissur. A Division Bench of this Court in Cherukode Co-op. Rural Bank Ltd. v. Parur Service Co-op. Bank (2006(3) KLT 38) has held that none of the Co-operative Banks, other than Primary Credit Societies, can do banking business or use the name 'bank' in their title without getting licence and without following regulations under the Banking Regulation Act, 1949. The question whether cheques drawn on saving bank accounts maintained by such banks, on dishonour, will attract an offence under Section 138 of the Act is a matter to be probed into. However, in the absence of any material to decide that question, I am of the view that the complainant should be given an opportunity to establish his case in respect of this aspect also before the trial court.
In the result, the appeal is allowed. The impugned judgment is set aside. The matter is remitted to the trial court for de nova consideration including the sustainability of a complaint under Section 138 of the Act in respect of Ext.P1 cheque. The parties shall appear before the trial court on 05.01.2015.
A. HARIPRASAD, JUDGE.
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